Bills Digest no. 121 2004–05

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The major
purpose of this Bill is to amend the Fisheries Management Act 1991 and
Torres StraitFisheries Act 1984 to
provide for a law enforcement and detention regime for suspected
illegal foreign fishers consistent with the Migration Act 1958.

The Fisheries Management Act 1991
(FMA) is the main piece of Commonwealth legislation regulating
fishing within the Australian Fisheries Zone (AFZ). With some
exceptions, the outer limits of AFZ are the same as Australia s
Exclusive Economic Zone (EEZ).

The Torres StraitFisheries Act 1984 (TSFA) gives
effect to Australia s fisheries obligations under the 1978 Torres
Strait Treaty. Amongst other matters, the Treaty establishes what
is termed the protected zone which encompasses both the waters of
Papua New Guinea (PNG) and Australia (ie the AFZ). This zone is
intended to protect the traditional way of life and livelihood of
traditional inhabitants, including fishing and movement across the
PNG / Australian maritime boundary, as well as giving protection to
flora and fauna. The Treaty also provides for cooperative fisheries
management arrangements in and around the zone. Officers appointed
under FMA do have some jurisdiction in the protected zone, but the
TSFA creates its own law enforcement regime, including fisheries
offences.

Under a 1974 agreement with Indonesia,
Australia allows limited access by Indonesian fishers to some areas
of the AFZ that have traditionally been fished by them. Species
fished under such arrangements include trepang, trochus, abalone
and sponges. However, according the Minister s second reading
speech,(1) an increasing number of foreign fishing
vessels have been apprehended in the northern AFZ for suspected
illegal fishing activities, and there has been a growth in illegal
foreign fishing activity east towards Torres Strait and around the
south-west coast of Western Australia.. A total of 299 vessels have
been apprehended in the northern AFZ over the last two years, all
of which originated from Indonesia.(2) The vast majority
of these target shark species for their high-value fins. For
example, on 3 March 2005, a foreign fishing vessel was apprehended
with 176 shark fins on board. On a number of occasions, vessels
have been apprehended with large freezer storage facilities on
board. These vessels often target large quantities of reef fish
species. Three of these vessels were apprehended on 26 February
2005 with a total of 4000 kilograms of fish on board.(3)
The increasing problems in the northern AFZ has been in spite of
the Government intensifying its efforts to stop the flow of illegal
fishing vessels from Indonesia through various initiatives under
the Australia-Indonesia Working Group on Marine Affairs and
Fisheries.

The FMA contains substantial law enforcement
powers to combat illegal foreign fishing. Where a boat is
intercepted in the AFZ on suspicion of an offence, the boat is
usually taken back to the mainland for investigation purposes. The
crew of the boat are automatically given enforcement visas under
the Migration Act 1958
(Migration Act)(4) which allows them into the Australian
migration zone. Detention of the crew is generally on their own
boats at Broome, Darwin, Gove or Horn Island, except where their
boats are unseaworthy, during periods of extreme weather or if
fishers require medical attention. As at 2 March 2005, there were
58 suspected illegal foreign fishers under investigation for
offences, 32 awaiting legal process and 28 fishers awaiting
removal. Of the 28 fishers awaiting removal, 6 have medical
issues and as such are unfit to travel at the moment. Travel
documents are currently being organised for the removal of the
remaining 22 fishers either by vessel or by commercial flight over
the next few days.(5)

There has been criticism over the years about
the conditions of detention in some cases, including a 1998 report
by the Commonwealth Ombudsman(6) and more recently by a
Northern Territory coroner s investigation of a death in 2003 of a
detainee aboard a vessel in Darwin Harbour.(7) In 2004,
the government allocated more funds to speed the processing of
crews allegedly involved in illegal foreign fishing.(8)
The Government has also decided to upgrade a Department of
Immigration and Multicultural Affairs contingency facility at
Berrimah near Darwin to turn it into the main detention facility
for these crews.(9)

If Commonwealth authorities so decide, crew
may prosecuted under the FMA or TSFA and fined if found guilty.
Because of restrictions under the article 73(3) of the United
Nations Law of the Sea Convention (UNCLOS), no prison terms apply
for the illegal foreign fishing offences, although in practice a
person could be imprisoned for the non-payment of a fine. If a crew
member is found guilty, their enforcement visa is cancelled and
they become unlawful non-citizens. They are then deported by the
Department of Immigration and Multicultural Affairs under the
Migration Act.

Overall, theBillincorporates new powers and functions
into the FMA and the TSFA, mainly based directly on existing
provisions in the Migration Act. This will enable law enforcement
officers and others assisting them to carry out a greater range of
processing functions (searches, identity checks etc) whilst persons
are under fisheries detention.

Existing section 84 of the FMA sets out the
powers of officers . In addition to fisheries officers appointed
under the FMA, these include AFP or State / Territory police,
Defence Force (ADF) members, and Customs officers. Included in
section 84 powers is the ability to seize a boat reasonably
believed to be have been used in contravention of the FMA and
require the ship s master to take the boat to a nominated place for
the purposes of further investigation. Section 42 of the TSFA
contains similar powers.(10) In practical terms, the
exercise of such powers means that the liberty of the master and
crew is likewise restrained.

The legality of restraining liberty via
exercising control over a ship was a key issue in the Commonwealth
s actions in forcibly taking control of the MV Tampa in 2001. The Federal
Court ruled at first instance such restraint was unlawful, although
that was overturned within a week on appeal.(11) Within
days of these cases, the Parliament passed the Border Protection (Validation and
Enforcement Powers) Act 2001.(12) This Act provided
that any restraint of liberty resulting from the detention of a
ship or aircraft under specific provisions of the Customs Act or
Migration Act was not unlawful and that no criminal or civil action
regarding the restraint could be mounted against Commonwealth
authorities or persons involved. However, the relevant provision of
the Border Protection
(Validation and Enforcement Powers) Act 2001 also provided
that the High Court retained its original jurisdiction under
section 75 of the Constitution. Amongst other matters, section 75 states that the
High Court has 'original jurisdiction' (i.e. the authority to hear
cases) in all matters:

(iii) in which the
Commonwealth, or a person suing or being sued on behalf of the
Commonwealth, is a party,

(v) in which a writ
of Mandamus[directing that an officer do a
certain action] or prohibition [preventing an officer from
doing a certain action]or an
injunction[halting a current or future action
for a period of time] is sought against an officer of the
Commonwealth.

Section 75 ensures that the
legality of actions by the Commonwealth and its officers can be
tested in the High Court. AsChief JusticeGleesonsaid in
Plaintiff S157, section 75(v) 'secures a basic element of
the rule of law'.(13)His fellow judges agreed,
saying that this provision:

is a means of assuring
to all people affected that officers of the Commonwealth obey the
law and neither exceed nor neglect any jurisdiction which the law
confers on them In the end this limits the powers of the Parliament
or of the Executive to avoid, or confine, judicial
review.(14)

Items 1-2 insert new
provisions equivalent to the Border Protection (Validation and
Enforcement Powers) Act 2001 discussed above into the FMA and
TSFA respectively. The intention is to confirm the Commonwealth s
power to lawfully restrain liberty to fisheries enforcement, rather
than just to migration and customs enforcement as is the case now.
The effect of retaining the section 75 original jurisdiction is
that if an officer was not entitled to seize and direct a boat into
port (for example, if there were insufficient grounds to say there
could have been a reasonable belief that the boat was contravening
the FMA), the High Court could hear a case against the
Commonwealth.

Items 3-11 delete various
sections of the FMA as they become redundant with the new
provisions included in item 13.

Item 12 inserts
new section
105Q into the FMA which states that new Schedule 1A of the FMA
has effect that is, becomes an operative part of the FMA.
Item 13
inserts the new
Schedule 1A. This, along with a similar Schedule inserted
into the TSFA by item
20, contains the majority of the Bill s provisions. In
some cases, the various powers and authorisations contained in
item 13 are
already contained in various parts of the FMA (but are due to be
repealed by items
3-11). In other cases, such as the power to conduct strip
searches and personal identification tests, these powers are
currently contained in the Migration Act but not in the FMA.

New section 1 of Schedule 1A
sets out the main objects of the schedule. They include providing
for:

the detention of suspected illegal foreign fishers for a limited
period for the purpose of determining whether they should be
prosecuted

searching, screening and identification of such detainees

detainees to be given access to facilities for obtaining legal
advice

the facilitat[ion] of the transition of persons from fisheries
detention to immigration detention, including by authorising the
release of personal information to immigration organisations and
authorities.

New section 3 allows for the
appointment of detention officers by the Fisheries Minister. They
are subject to the directions of the Minister or the Australian
Fisheries Management Authority (AFMA): new section 4. In exercising
the powers given to them under the FMA or regulations, detention
officers and any persons assisting them are immune from any legal
action(15) provided that they have acted in good faith:
new section 5.
This reflects the existing legal protection given to officers and
persons assisting them in section 90 of the FMA.

New section 6 allows AFMA to
authorise officers and/or detention officers in respect to carrying
out functions or exercising powers contained in specific provisions of
new Schedule
1A: these are called authorised officers . The Explanatory Memorandum comments
that this to ensure that tight control is maintained over the
number and type of people who will be authorised to use certain
powers .(16) FMA officers and/or detention officers who
are also authorised to carry out functions or exercise powers under
the Migration Act are also automatically taken to be authorised
officers with respect to the equivalent provision in the FMA listed
in new section
7.

New section 8 allows
officers to detain persons who are suspected on reasonable grounds
of committing one of a range of illegal foreign fishing offences.
This power is currently contained in paragraph 84(1)(ia) of the
FMA, but this is due to be repealed by item 3. In exercising the
power, an officer cannot use more force than is reasonably
necessary. New section
9 also provides that existing protections under Part IC of
the Crimes Act 1914
(such as access to interpreters and the right of contact with the
relevant consular office) continue to apply to persons
detained.

Once detained, persons may be moved within
Australia, including between the mainland and external territories:
new section
12. This power is currently contained in paragraph
84(1)(ib) of the FMA, but this is due to be repealed by
item 3.
Before moving a detainee, an officer or detaining officer must
consider issues including the welfare of the detainee . Again, an
officer cannot use more force than is reasonably necessary to move
the detainee.

Detainees cannot be detained under the FMA for
more than 168 hours (1 week): new section 13. However,
they must also be released sooner if any one of the following
occurs first:

as soon as an officer knows or reasonably believes that the
detainee is an Australian citizen or resident

at the time a detainee is brought before a magistrate for a
fisheries offence listed in subsection 8(1), or(17)

at the time a decision is made to not charge a detainee with an
offence under that subsection.

These requirements are currently contained in
subsection 84A(1), but this is due to be repealed by item 5.

New section 14 provides that
escape from detention is an offence carrying a penalty of
imprisonment for up to two years.(18) Existing section
98A contains this offence, but this is due to be repealed by
item 11.

New section 15 allows for an
authorised officer, or another person,(19) to search a
detainee and any property under their immediate control for the
purpose of finding out whether the person has hidden on their
person (i) a weapon or other object capable of inflicting bodily
injury or assisting them to escape from detention and/or (ii) any
evidence relating to a fisheries offence listed in new subsection 8(1). No
warrant is required. Detainees cannot be compelled to remove any
clothing (strip searches are covered in new sections 17 and 18). The
search must be done a person of the same sex, unless such a person
is not available . New
section 15 contains the standard provision on minimal use
of force and protecting a person s dignity to the extent possible.
Persons conducting a search are not liable to any civil or criminal
action, provided they act in good faith and do not transgress the
use of force and dignity provisions. The search powers and
limitations are currently contained in paragraph 84(1)(ic) and
section 84B, but these are due to be repealed by items 3 and 5.

New section 17 introduces
strip searches into the FMA for the first time. The circumstances
in which a strip search can take place mirror those in existing
section 252A of the Migration Act. No warrant is required.
Essentially, a new
section 17 strip search can only be done if an authorised
officer suspects, on reasonable grounds, that the detainee has a
hidden weapon or other object capable of inflicting bodily harm or
assisting them to escape detention, and a strip search is necessary
is get that object. In addition, strip searches must be authorised
by at least SES Band 3 (Deputy Secretary) level, or if the person
is at least 10 but under 18, by a magistrate.(20) In
both cases, the person authorising the strip search must be
satisfied that the grounds for the suspicion mentioned above are
reasonable. The rules for the actual conduct of the strip search
are laid down by new
section 18, and are equivalent to those under 252B of the
Migration Act. Note that if a detainee is being held in a State or
Territory prison or remand centre, new section 16 and
17 do not
apply and any searches are regulated under the relevant law of that
State or Territory: new
section 22. This reflects section 252F of the
Migration Act 1958.

New section 16 allows
authorised officers to conduct screening on detainees for the
purpose of finding out whether the person has a hidden weapon or
other object capable of inflicting bodily injury or assisting them
to escape from detention. Screening means using metal detectors,
X-rays and the like. New section 16 also
contains the standard provision on minimal use of force and
protecting a person s dignity to the extent possible.
New section 16
is based on section 252AA of the Migration Act. Currently, there
are no screening powers in the FMA.

New section 23 allows
visitors to the detainees to be screened. This can be done by the
same means as new
section 16. In cases where an authorised officer suspects,
on reasonable grounds, that a visitor has an object that might
endanger the safety of the detainees, staff or other persons on the
premises, or disrupt the order or security arrangements on the
premises , they may also request the visitor to remove outer
clothing, open containers etc so these can be inspected or
otherwise left in the officer s care during the visit. A visitor
has the right to refuse any screening, although as result they may
be refused entry into the place where the detainee is held.
New section 23
is based on section 252G of the Migration Act.

If requested by the detainee, the person
responsible for [their] detention must provide the detainee with
access to reasonable facilities for obtaining legal advice or
taking legal proceedings in relation to his or her detention:
new section
24. There is no obligation on detaining officers to inform
detainees that they have this right, which is somewhat curious
given that one of the stated objects of new Schedule 1A is providing for
detainees to be given access to facilities for obtaining legal
advice . However, because of the new section 9 which amongst
other things, applies existing section 23G of the Crimes Act 1914 - a detainee may
already be aware of this right. Section 23G provides an
investigating official must inform a protected suspect (which a
detainee would be) of their right to attempt to contact a legal
practitioner and, as soon as practical, give them reasonable
facilities to consult with a practitioner. As a matter of drafting,
it may have been helpful for a note to be attached to
new section 24
cross referencing the detainees rights under section 23G of the
Crimes Act 1914.

New section 24 is based on
section 256 of the Migration Act.

New sections 25-59 deal with
how a detainee s identification may be established and how such
identification and personal information is to be handled.

Subject to some exceptions, a non-citizen in
detention must provide certain personal identifiers to authorised
officers: new section
28. Identifiers that an officer may require can
include:

fingerprints or handprints

a measurement of the person s height and weight

a photograph or other image of the person s face and
shoulders

the person s signature,

anything prescribed by regulations, except that these cannot
include things such as providing blood or salvia or procedures that
relate to the genitals or other intimate areas of the
body.(21)

New section 28 is based on
section 261AA of the Migration Act.

Under new section 30, before
carrying out an identification test (that is, the method by which a
personal identifier is obtained), the authorised officer must tell
the detainee:

that they may request both that an independent person be present
while the test is being carried out(22)and that it be carried out by a
person of the same sex as the detainee; and

of any other matters that are specified in the
regulations.(23)

An
independent person is defined in new section 25 as a
person (other than an officer, detention officer or authorised
officer) who:

(a) is capable of
representing the interests of a non-citizen who is providing, or is
to provide, a personal identifier, and

(b) as far as practicable,
is acceptable to the non-citizen who is providing, or is to
provide, the personal identifier, and

(c) if the non-citizen is a minor is capable of representing the
minor s best interests.

New section 30 information
must be given, through an interpreter if necessary, in a language
in which the detainee is able to communicate with reasonable
fluency . The information may in oral or written form.
New section 30
is based on section 261AC of the Migration Act.

New section 31 details the
general rules for carrying out identification tests on detainees.
It is based on section 261D of the Migration Act which the
Explanatory
Memorandum(24) states is in turn based on the rules
contained in section 23XI of the Crimes Act 1914. Amongst
other things, the rules include that the test:

must be carried out in circumstances affording reasonable
privacy to the non-citizen, and

if requested by the detainee, not be carried out in the presence
or view of a person who is of the opposite sex, provided that it is
practicable to comply with the request, and

must not involve the removal of more clothing than is necessary
for the carrying out of the test, and

must not involve more visual inspection than is necessary for
carrying out the test, and

where it is practicable to do so, must be carried out at the
same time as any other identification tests that are to be carried
out on the detainee.

In respect to the second dot point, it is
worth noting that the Crimes Act provisions do not have the
practicable to comply condition thus the Migration Act and
new section 31
provisions contain less protection for the person being subjected
to the test(s).

New sections 47-48 place
restrictions on tests for persons under 15 years(25) and
incapable persons. The latter are defined as persons who are
incapable of understanding the general nature and effect of, and
purposes of, a requirement to provide a personal identifier. For
both class of persons, the only identifiers that may be taken are
measurements of their
height and weight or a photograph, or other image, of their face
and shoulders. In addition, a parent, guardian or independent
person must be present at the test.

New sections 25, 47 and 48
are based on sections 5, 261AL and 261AM of the Migration Act
respectively.

New section 32allows an authorised
officer to use reasonable force to enable an identification test to
be carried out or to prevent the loss, destruction or contamination
of any personal identifier or any meaningful identifier derived
from the person identifier . However, force cannot be used against
a minor or incapable person, and in any other case cannot be used
unless:

he detainee has refused to allow the identification test to be
carried out, and

all reasonable measures to carry out the identification test
without the use of force have been exhausted, and

the use of force in carrying out the identification test is
authorised under new
subsection 32(4). This authorisation can only be given by
a senior authorising officer that has been nominated by AFMA for
the purposes of new
section 32. Such a person can only authorise the use of
force if they are reasonably satisfied that the situation named in
first two dot points exists.

New section 32 is based on
section 261AE of the Migration Act.

New section 33 also provides
that carrying out of an identification test is not of itself to be
taken to be cruel, inhuman or degrading or a failure to treat a
person with humanity and with respect for human dignity , but also
that that nothing in the FMA authorises the carrying out of a test
in manner that would violate this standard. As the Explanatory Memorandum
notes,(26) the new section 33 phrasing
reflects the language of Articles 7 and 10(1) of the
International Covenant on Civil and Political Rights.
New section
33 itself is based on section 261AF of the Migration
Act.

If the detainee requests it, an identification
test must only be carried out by an authorised officer of the same
sex: new section 35.
New section 35 is based on section 261AH of the Migration
Act. Under new section
36, an independent person must also be present at the test
if:

force is to be used in carrying in out the test; or

the detainee requests the presence of such a person and they are
readily available at the same place as the detainee and available
to attend with a reasonable time

New section 36 is based on
section 261AI of the Migration Act.

New section 37 provides that
identification tests may be videotaped. The Explanatory Memorandum
notes that the subject of any such tape may request a copy of a
tape through the Freedom of
Information Act 1982.(27)New sections 39-46 also deal
with video recordings.

New section 40 states that a
person may not access a video recording made under new section 37 unless
authorised under new
section 41 or as a result of circumstances listed in
new subsection
42(2). Violation of new section 40 is an offence
carrying imprisonment of up to 2 years. A new section 41
authorisation must specify the purposes for which is granted the
allowable purposes listed in new section 41 are
wide-ranging, but generally exclude access for the purpose of
investigation or prosecuting an offence under Commonwealth, State
or Territory law.(28)New section 42 also creates
an offence punishable by imprisonment of up to 2 years, but it is
for conduct that results in a video recording being provided to
another person. Circumstances where an offence does not occur are
listed in subsection
42(2), but again they generally exclude circumstances
where the provision of the recording is for the purpose of
investigation or prosecuting an offence under Commonwealth, State
or Territory law.(29)

New sections 43-44 create
various offences of unauthorised modification and impairment of
videorecordings, punishable by imprisonment of up to 2 years.

New sections 49-58 contain
similar provisions to new sections 39-46 except
that they relate to a detainee s identifying information , rather
than a videotape of a identification test. As well as personal
identifiers, identifying information includes information that is
derived from personal identifiers in some way. Access to, and
disclosure of, identifying information must only take place where
authorised or under listed circumstances. Again these cannot
generally include for the purpose of investigation or prosecuting
an offence under Commonwealth, State or Territory
law.(30) However, disclosure can be permitted if it is
in order to identify non-citizens who have a criminal history, who
are of character concern (as defined under the Migration Act) or
who are of national security concern, and also to combat document
and identity fraud in immigration matters: new subsection 53(2). AFMA
may also authorise specified officers to disclose identifying
information to foreign governments or prescribed international
organisations: new
section 54.

New section 59 deals with
disclosure of detainees personal information.(31)
Disclosure may only be made to agencies or organisations that are,
or will be, responsible for:

taking the individual into immigration detention; or

keeping the individual in immigration detention; or

causing the individual to be kept in immigration detention;
or

the removal of the individual.

In addition, such disclosure may only
be for:

the immigration detention of the individual; and

the removal of the individual; and

the welfare of the individual while in immigration detention or
being removed.

The way new section 59 is phrased,
it is arguable that all of these purposes have to be satisfied
before the relevant information can be disclosed. If this is not
what is intended, all doubt could be removed by amending the phrase
in new subsection 59(1) for the purposes described to for any of
the purposes .

Item 14 is a transitional
provision. Once new
Schedule 1A comes into force, any person that has already
been detained under existing paragraph 84(1)(ia) of the FMA will be
taken to have been detained under the provisions of new schedule 1A.

Items 15-20 deal with
amendments to the Torres
StraitFisheries Act
1984 (TSFA). They insert new sections that are in most cases
identical to the provisions described earlier in this Digest that
amend the FMA. Probably the only obvious major difference is in
relation to new section
13 of item
20, which with the end of fisheries detention. Where a
person is detained on a foreign boat, the maximum detention period
is 168 hours (this is also the limit under the FMA). However,
new section 13
provides that where the boat is a PNG boat or the person detained
is a PNG citizen or permanent resident, the maximum time is 72
hours. Presumably this difference is related to the fact that
persons on PNG boats, or PNG citizens or permanent residents, can
only be prosecuted for fishing offences occurring in the Treaty
area by PNG, not Australia.

It is also worth noting that the TSFA does not
contain many of the detention-related powers that are currently in
the FMA and thus collectively items 15-20 represent a
significant expansion of fisheries enforcement in the Torres Strait
area.

Items 21-26 amend some of
the existing search provisions in the FMA. In particular,
item 21 allows
officers, without warrant, to search persons the officer reasonably suspects
of foreign fishing boat offences for the purposes finding whether
they have a hidden weapon or other object capable of inflicting
bodily injury and/or (ii) any evidence relating to a
fisheries offence. At present officers can search the boat, but
cannot search persons until they have been detained. The new power
is subject to new
section 84AA (item 23) limitations
(containing the standard provision on minimal use of force and
protecting a person s dignity to the extent possible etc).
New section
84AA is the same in all important respects as to existing
section 84B. Existing section 84B is to be repealed by
item 5.

Existing section 87H of the FMA allows an
officer to board and inspect a boat on the high seas that is
equipped for fishing if the officer has reasonable grounds to
believe that the boat does not have a nationality (that is, it is
not flying a flag or other identification that indicates in which
country the boat is registered). Item 26 inserts new
subsections 87H(2A) and (2B) that will allow officers, without
warrant, to search persons
for the purposes finding whether they have a weapon or other object
capable of inflicting bodily injury and/or (ii) any evidence
relating to a fisheries offence. The new power is also
subject to new section 84AA.

Items 28 and 33 insert the same
provisions into the TSFA as items 21 and 23 do for the FMA.

Currently, boats, equipment and catch seized under
the TSFA on suspicion of
illegal foreign fishing activity can only be forfeited by a
court order following conviction on an relevant office.
Items
35-36 introduce automatic forfeiture provisions into the
TSF along the lines currently contained in the FMA. Under these
provisions, where a boat or
other thing is seized by officers on the basis of a suspicion
of illegal foreign fishing
activity, the owner or master of the ship must notify AFMA within
30 days that they intend to claim for the return of the thing. AFMA
then allows the claimant 2 months to institute court proceedings to
recover the thing. If the proceedings are not instituted within
this time, or if the proceedings are unsuccessful, absolute
ownership of the thing passes to the Commonwealth. Note that AFMA
may release the boat or other thing back to the owner or master (as
the case may be) either on payment of a fine that can be imposed
under the relevant Act or payment of the value of the
thing.

Items
42-45expand the
application of existing offences in the FMA and TSFA. The existing
offences prohibit a person fromassaulting, resisting or
obstructing an officer in their duties. The amendments expand this
by prohibiting the assault etc of a person who is not officer but
is exercising a power or performing a function under the respective
Act.

When unlawful
non-citizens are initially detained under the FMA on
suspicion of illegal foreign fishing activity, they are
automatically granted what are called enforcement visas.
Item 1 in
Schedule 2 of
the Bill amends the definition of fisheries detention offence in
the Migration Act so that persons detained under the TSFA will now
be granted enforcement visas. Items 2-8 make related
changes by including reference to the TSFA in various provisions of
the Migration Act.

Concluding
Comments

The Fisheries Management Act 1991,
and to a lesser extent the Torres Strait Fisheries Act
1984, have been progressively amended in recent years to
increase the Commonwealth s ability to combat illegal foreign
fishing in the AFZ. Part of this process has been the integration
of fisheries enforcement with the Government s detention and
deportation procedures and policies with respect to unlawful
non-citizens under the Migration Act 1958. The Border
Protection Legislation Amendment (Deterrence of Illegal Foreign
Fishing) Bill 2005 is the latest example of this integration. It is
worth noting that theBillprovides a very limited range of
review mechanisms should a person wish to challenge the basis of
their detention. Also as mentioned in the main provisions section
of this Digest, the drafting of new section 24 of
new Schedule
1A which deals with the provision of facilities for
obtaining legal advice could be improved to more adequately reflect
the stated objects of Schedule 1A. In particular,
the relationship between new section 24 and
new section 9
(which provides detainees with certain rights about access to legal
advice) could be made clearer.

Detention under the Fisheries Management Act 1991 is
for a maximum of one week, although of course the total length of
detention may be considerably longer once the fishers are held
under the Migration Act
1958. As mentioned in the background to this Digest, the
conditions under which suspected and convicted illegal foreign
fishers have been detained have been subject to some criticism.
However, the background also noted that the Government has
instituted a range of measures to address the criticisms. It is
beyond the scope of this Digest to make a judgment on these.
However, the general issue of detention was discussed recently in
Senate estimates.(32)

That is, an offence under section 99, 100, 100A. 101, 101A,
101B, 105E, 105F of the FMA or being an accessory after the fact in
relation to any of these.

Due to the operation of the Criminal Code Act 1995, attempted
escape is also an offence.

On request on the authorised officer.

Strip searches cannot be done on persons under 10. It is not
clear what procedures apply if there is doubt about a persons
age.

e the definition of intimate forensic procedure in section 23WA
of the Crimes Act for a full list.

Such a person must be present if the test is carried out using
force see new section
36.

The Explanatory
Memorandum suggests at p. 22 that amongst other things, the
kind of information that could be prescribed in the regulations
might includes the way in which the test is to be carried out,
including the power to use reasonable force, if necessary; that the
identification test may produce evidence against the non-citizen
that might be used in a court of law; and the non-citizen s right
to make a complaint to the Privacy Commissioner

At. 50.

The Explanatory
Memorandum comments at p. 29 that the 15 year age limit was
set so as to be consistent with international comparisons and the
Migration Act 1958 .

At p. 52.

It is unknown what Commonwealth Government policy is in respect
of waiving the normal FOI application and processing fees in the
case of an application by a detainee.

Except for an offence
involving whether an identification test was carried out
lawfully.

Except for an offence
involving whether an identification test was carried out
lawfully.

Except for an offence
involving whether an identification test was carried out
lawfully.

Under section 6 of the Privacy Act 1988, personal information is
defined as Information or an opinion (including information or an
opinion forming part of a database), whether true or not, and
whether recorded in a material form or not, about an individual
whose identity is apparent, or can reasonably be ascertained, from
the information or opinion .

Angus Martyn
9 March 2005
Bills Digest Service
Information and Research Services

This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.

IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.

Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
duties.